Attorney general won't pursue open government complaints

Mar. 14, 2014

About this report

This story is part of a Gannett Wisconsin Media Investigative Team series undertaken as part of Sunshine Week, a national initiative launched in 2002 to promote a dialogue about the importance of open government and freedom of information. Sunshine Week runs through March 22. Visit www.sunshineweek.org for more information.

Open government enforcement

Wisconsin residents frustrated by potential open meetings violations or a denial of a public records request have several options under the law. The state Attorney General’s Office is authorized to file enforcement actions, but as a matter of practice leaves it up to district attorneys in each county. The attorney general does offer written opinions, however, on whether a given circumstance is likely a violation of law. Response times to recent citizen requests for an opinion range from a a few weeks to more than a year. The attorney general also produces compliance guides detailing public records and open meetings requirements. Open meetings

• District attorneys are authorized to enforce open meetings law through legal action, so a citizen’s first step is to file a verified complaint with that office. The complaint must be signed and notarized and include the identities of the alleged violators, the factual background of the allegation and the identity of any witnesses or relevant documentary evidence. The district attorney then decides whether to investigate and either seek corrective action or a forfeiture of up to $300 per violation for officials who knowingly violated the law. The judge also has the authority to void any action taken during a meeting that was in violation. • If the district attorney declines to take action within 20 days, a citizen can bring a court action in the name of the state. If the case is decided in favor of the citizen, a judge can order the government entity to reimburse the citizen’s attorney fees. Public records

• Citizens unsatisfied with the response to a public records request can file a writ of mandamus asking a judge to order release of the records. The citizen must show that: 1) he or she has a legal right to the records, 2) the government entity has a legal duty to disclose the records, 3) substantial damage would result if the petition is denied, and 4) no other adequate remedy exists under law. If successful, the requester is entitled to the records, reimbursement of attorney fees, damages of at least $100 and potentially punitive damages. • Citizens can also file a written request asking the district attorney to file a mandamus action seeking release of the records. • Also, the district attorney can pursue a non-criminal forfeiture through a separate court action. A records custodian can be fined up to $1,000 if he or she “arbitrarily and capriciously denies or delays response to a request or charges excessive fees.” Source: Wisconsin state law, Wisconsin Attorney General’s Office

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Wisconsin law authorizes the attorney general and local district attorneys to enforce open government laws through court action, but Attorney General J.B. Van Hollen has never pursued such a case in seven years in office.

The attorney general is the chief interpreter of Wisconsin’s open meetings and public records laws and maintains lengthy compliance outlines on each subject. But in response to the hundreds of Wisconsin residents who report potential open meetings and public records violations, Van Hollen and his staffers defer legal action to local prosecutors.

An August 2011 letter to Oconto County resident Raymond Blair, for example, says the described situation in the town of Doty was a “likely violation” of open meetings law, but Assistant Attorney General Bruce Olsen called that a matter of “local concern.” Olsen said the decision was “a matter of policy and resources.”

Blair sought action after two of three town board members participated in a meeting of another committee, enough for a quorum of the town board. Olsen said the meeting should have been posted as a joint session of the town board and committee.

“(The Attorney General’s Office) came back with a letter that basically said, essentially we agree with you, but we really don’t have the time to get involved,” said Blair, 69.

Van Hollen’s predecessor, Peg Lautenschlager, filed court cases at least twice against public entities to enforce state open government laws.

Letters, including Blair’s, say Van Hollen “may elect to prosecute complaints involving a matter of statewide concern.” But Dana Brueck, spokeswoman for the attorney general, confirmed no such action has been taken during Van Hollen’s time in office.

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That means nuanced open government complaints are left to local prosecutors, who may handle such cases only once or twice a year.

The Winnebago County District Attorney’s Office has a prosecutor and part-time investigator specially trained in open government cases, but many other counties don’t seek such training.

“I usually have to refresh myself with what the open meetings law is, because we just don’t do it that often,” said Sheboygan County District Attorney Joe DeCecco.

Van Hollen, through Brueck, declined an interview request.

Low-priority cases

Local district attorney’s offices — which state studies have repeatedly shown to be significantly understaffed — typically place a lower priority on open government complaints because they are not criminal matters. Illinois, Iowa, Michigan and Minnesota are among the states that make either public records or open meetings violations a misdemeanor, but both offenses yield non-criminal citations in Wisconsin. Fines range up to $300 for open meetings violations and $1,000 for public records violations.

But confusion remains in Wisconsin over who should be responsible for enforcing open government laws.

Blair wrote to Van Hollen in 2011 only after the Oconto County district attorney suggested Blair take his concerns to the attorney general. Blair wound up dropping the matter, but other state residents have filed legal action themselves and won civil cases after prosecutors didn’t respond to their complaints.

District attorneys statewide have issued seven citations for open meetings violations since 2009, and none for public records violations, court records show.

Brown County District Attorney David Lasee is among those who would like to see the Attorney General’s office take the lead on open government matters.

“From a resource standpoint, I’d rather see it handled by someone who specialized in this. The benefit to that as well is it gives consistency,” Lasee said. “To be fair to the DA’s offices. It’s something that’s a little outside of our box.”

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AG candidates split

Jon Richards, a Democratic candidate for attorney general, said he would get the state more involved in open government enforcement, if elected. He was surprised to hear the number of citations was so low over a five-year span.

“We should make sure that people understand there are consequences for violating the law,” said Richards, a state representative from Milwaukee. “Certainly under my watch, the Attorney General’s Office … will be very actively involved in making sure that government is operating in an open way, and that (enforcement) is going to be something important we’ll look at.”

Two other candidates to replace Van Hollen — who is not seeking a third term — have endorsed the current policy of handing off the cases to local authorities.

“I think it makes sense for the district attorney to be part of policing open government in their county,” said Republican Brad Schimel, who serves as Waukesha County district attorney. “Resources are tight for the district attorneys and attorney general both.”

Democrat Susan Happ, currently the Jefferson County district attorney, said she believes the current system works and that local prosecutors generally take open government “very seriously.” Democratic candidate Ismael Ozanne, the Dane County district attorney, did not return an email seeking comment.